Citation Nr: 1443188
Decision Date: 09/26/14 Archive Date: 10/06/14
DOCKET NO. 11-33 398 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUES
1. Entitlement to a rating in excess of 30 percent for abdominal adhesions.
2. Whether new and material evidence has been received to reopen a claim of entitlement to spastic colon.
3. Entitlement to service connection for spastic colon.
4. Entitlement to service connection for an unspecified severe chronic pain disorder.
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
K. M. Schaefer, Counsel
INTRODUCTION
The Veteran served on active duty from May 1981 to August 1981.
This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from February 2009 and April 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.
In November 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge, via videoconference. A transcript of the hearing is associated with the claims file.
At the hearing, the Veteran submitted additional documentary evidence, of which she waived RO review. See 38 C.F.R. § 20.1304 (2013). Therefore, the Board may consider this evidence when adjudicating the claims.
It appears that the RO reopened the claim of entitlement to service connection to spastic colon and considered the issue on its merits in a September 2011 statement of the case. However, before the Board may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).
The issues of entitlement to an increased rating for abdominal adhesions and entitlement to service connection for spastic colon and a chronic pain disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. An April 2002 decision denied the claim of entitlement to service connection for spastic colon, and the Veteran withdrew her appeal of that decision in January 2005.
2. Evidence received since the April 2002 rating decision is both new and relates to an unestablished fact necessary to grant the claim of entitlement to service connection for spastic colon.
CONCLUSIONS OF LAW
1. The April 2002 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001); currently, 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013).
2. Evidence submitted to reopen the claim of entitlement to service connection for spastic colon is both new and material; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VA's Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the Veteran of information and evidence necessary to substantiate the claim and redefined its duty to assist her in obtaining such evidence. 38 U.S.C.A.
§§ 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2013). Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA in the context of the issue of whether new and material evidence has been submitted to reopen the claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).
II. New and Material Evidence
The Veteran seeks service connection for spastic colon, a claim which was denied in an April 2002 rating decision on the basis that there was no evidence that the disability was present in service or a result of service-connected disabilities. The Veteran filed an appeal of that rating decision, and a statement of the case was issued; however, in January 2005, she withdrew her appeal. Therefore, the April 2002 rating decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R.
§§ 3.104, 20.302, 20.1103 (2001); currently, 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013).
Generally, a claim which has been denied in an unappealed or final RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010).
New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New and material evidence need not address each previously unproven element of a claim to be sufficient to reopen the claim. Shade, 24 Vet. App. at 120.
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
Since the April 2002 decision, additional evidence has been received in the form of VA treatment records, disability records from the Social Security Administration (SSA), and lay statements. These records include a July 1993 private treatment record in which the Veteran complains of bowel dysfunction since her hysterectomy. This evidence is new in that these treatment notes were not of record prior to April 2002 and it is material in that it relates to an unestablished fact necessary to grant the claim of entitlement to service connection for spastic colon. Thus, the Board determines that new and material evidence has been received since the April 2002 rating decision to support reopening of the claim of entitlement to service connection for spastic colon, and the claim is granted.
ORDER
New and material evidence having been received, the claim of entitlement to VA death benefits is reopened and, to that extent, the appeal is granted.
REMAND
The Board determines that a remand of all issues is required so that further development may be accomplished. The Veteran testified that she receives regular treatment at the VA facility in Charleston, South Carolina. The most recent treatment note is dated in August 2014, but there is a gap between September 2011, when she was seen in Detroit, Michigan, and March 2013. Therefore, all outstanding treatment records for the Veteran from the Detroit and Charleston VA Medical Centers and dated from September 2011 to March 2013 should be associated with the claims file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file).
In addition, the Veteran's most recent VA examination to assess the severity of her abdominal adhesions was performed in August 2010, over four years ago. Therefore, another VA examination to determine the current nature and severity of her abdominal adhesions should be scheduled.
In addition, the Board determines that VA examinations to assess the existence and etiology of the Veteran's spastic colon and chronic pain disorder should be scheduled. Treatment notes reveal complaints of bowel urgency and dysfunction since her hysterectomy. The August 2010 VA examiner opined that the Veteran did not have a chronic condition of the colon related to a hysterectomy, abdominal adhesions, right ovarian cyst, or appendectomy scar; however, she did not provide a rationale for that opinion. Further, she did not offer a diagnosis for the Veteran's bowel symptoms, noting only that an August 2013 genitourinary examiner did not offer a diagnosis. Therefore, the Board determines that this examination is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
Additionally, the Veteran has not been afforded a VA examination for her chronic pain disorder claim. There are references to a diagnosis of fibromyalgia in her primary medical history in VA treatment notes, and the Veteran is competent to speak to symptoms of chronic painand has also testified to an association between her chronic pain disability and her service-connected disabilities.. Therefore, she should be examined to assess the existence and etiology of any such chronic pain disability.
Accordingly, the case is REMANDED for the following action:
1. Associate with the claims file all VA treatment notes for the Veteran from the Detroit and Charleston VAMCs, including any associated outpatient clinics, dated from September 2011 to August 2014 and from August 2014 to the present. All requests and responses, positive and negative, must be documented in the claims file.
2. Schedule the Veteran for a VA examination to assess the current nature and severity of her abdominal adhesions, to include whether she has definite partial obstruction shown by X-ray, with frequent prolonged episodes of severe colonic distension, nausea or vomiting following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. The examiner should state the severity of the adhesions (e.g., moderately severe, severe). The examiner should also assess any associated external scarring. The claims file should be made available for review in conjunction with the examination.
3. Schedule the Veteran for the appropriate VA examination to assess the existence and etiology of any colon or bowel disability. The claims file should be made available for review in conjunction with the examination. Upon review of the claims file and evaluation of the Veteran, the examiner should respond to the following:
a. Identify any diagnosed colon or bowel disabilities.
b. Is it at least as likely as not (50 percent or greater probability) that any diagnosed colon or bowel disability is etiologically due to her military service?
c. Is it at least as likely as not (50 percent or greater probability) that any diagnosed colon or bowel disability been caused or aggravated by a service-connected disability, to include her service-connected hysterectomy with bilateral salpingo-oopherectomy?
Aggravation is defined as a permanent worsening beyond the natural progression of the disease.
A complete rationale for any opinion advanced must be provided.
4. Schedule the Veteran for the appropriate VA examination to assess the existence and etiology of any colon or bowel disability. The claims file should be made available for review in conjunction with the examination. Upon review of the claims file and evaluation of the Veteran, the examiner should respond to the following:
a. Identify any diagnosed fibromyalgia or other chronic pain disability.
b. Is it at least as likely as not (50 percent or greater probability) that any diagnosed fibromyalgia or other chronic pain disability is etiologically due to her military service?
c. Is it at least as likely as not (50 percent or greater probability) that any diagnosed fibromyalgia or other chronic pain disability been caused or aggravated by a service-connected disability, to include her service-connected hysterectomy with bilateral salpingo-oopherectomy?
Aggravation is defined as a permanent worsening beyond the natural progression of the disease.
A complete rationale for any opinion advanced must be provided.
5. Notify the Veteran that it is her responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without good cause may include denial of one or more of her claim. See 38 C.F.R. §§ 3.158, 3.655 (2013).
6. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and her representative, if any, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs